In re Adoption of Tobias D.

• Decision Date: 29 March 2012
• Docket Number: Docket No. Han–11–186.
• Citation: 2012 ME 45,40 A.3d 990
• Parties: ADOPTION OF TOBIAS D.
• Court: Maine Supreme Court

2012 ME 45

40 A.3d 990

ADOPTION OF TOBIAS D.

Docket No. Han–11–186.

Supreme Judicial Court of Maine.

Argued: Dec. 12, 2011.Decided: March 29, 2012.

Rosemarie Giosia, Esq. (orally), Ellsworth, for appellant R.M.

Amy Faircloth, Esq. (orally), Pelletier & Faircloth, Bangor, for appellee guardians.

Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.

GORMAN, J.

[¶ 1] R.M. appeals from a judgment entered in the Hancock County Probate Court ( Patterson, J.) denying his petition to establish his parental rights to Tobias D. and granting the petition of the child's current guardians to terminate his parental rights to the child. R.M. argues that the court erred in failing to find that he is the child's legal father, in determining that he is not entitled to parental rights pursuant to 18–A M.R.S. § 9–201 (2011), and in terminating his parental rights pursuant to 18–A M.R.S. § 9–204 (2011). He also challenges the constitutionality of section 9–201, and the court's reliance on the testimony of a particular witness. We vacate the judgment.

I. BACKGROUND

[¶ 2] Tobias was born in September of 2009. His mother, who was living in Indiana, was sexually active with multiple men around the time of the child's conception, including (1) her husband, who is not the child's father according to a DNA test; (2) R.M.; and (3) a man she could identify only as “Jose.” At some point during her pregnancy, the mother informed R.M. that she was pregnant, he might be the father, and she was planning to terminate the pregnancy; the mother later informed R.M.'s aunt that she had had an abortion, and R.M. believed that to be true.

[¶ 3] Unbeknownst to R.M., however, the mother had informally arranged for the child to be adopted by a family friend and the friend's husband (the guardians) in Maine. The mother gave birth to the child in Maine and left the child with the guardians a few days after giving birth. The child, now two and one-half years old, has resided with the guardians since then.

[¶ 4] The guardians filed three petitions in the Probate Court on November 9, 2009: a petition to adopt the child, a petition for guardianship of the child, and a petition for temporary guardianship of the child.¹ With the petitions for guardianship, the mother submitted a “Consent and Affidavit” dated October 22, 2009, and a separate undated affidavit, both listing the identity of the child's father as “unknown.” ² With the adoption petition, the mother submitted another affidavit of paternity dated October 22, 2009, naming the child's father as “[n]ot known.” ³ On December 22, 2009, the mother submitted a second affidavit in the adoption matter, again naming the father as “unknown.” By order dated December 22, 2009, the court appointed the mother's friend and the friend's husband as the child's limited temporary legal guardians.

[¶ 5] Despite these four affidavits, however, and apparently based solely on the child's appearance at the time of his birth, the mother had concluded that R.M. was, in fact, the child's father. By letter dated January 8, 2010, the mother informed R.M. that in fact she had given birth to the child and that he was the father.

[¶ 6] On January 11, 2010, the guardians filed a letter with the Probate Court advising it that “we now know that the biological father of [the child] is [R.M.]” Nine days later, they filed a motion requesting that the court order Maine's Department of Health and Human Services to request from the State of Indiana an assessment of R.M. and the mother to determine the suitability of placing the child with either of them pursuant to the Interstate Compact for the Placement of Children, 22 M.R.S. §§ 4251–4269 (2011). They also requested that the court appoint a guardian ad litem for the child. On January 28, 2010, R.M. filed a request for a change of guardianship and an objection to the adoption petition. On the same date, the guardians petitioned for termination of R.M.'s parental rights. On February 1, 2010, R.M.'s parents also filed a request for change of guardianship and an objection to the adoption. The following day, the mother filed two additional affidavits of paternity in the adoption matter, and two additional affidavits in the guardianship matter, this time naming R.M. as the father. On February 26, 2010, R.M. filed a voluntary acknowledgement of paternity.⁴

[¶ 7] The Probate Court assigned counsel to R.M. in May of 2010 and, after a significant amount of process and discovery, R.M. petitioned the court for parental rights in October of 2010. In December of 2010, the court appointed an attorney—with the powers and duties of a guardian ad litem—to represent the child. See 18–A M.R.S. § 5–407(a) (2011).

[¶ 8] The court conducted a hearing in January of 2011 on R.M.'s petition to establish parental rights and the guardians' petition to terminate R.M.'s parental rights. By judgment dated March 23, 2011, the court found that “for purposes of these proceedings, [R.M.] shall be considered to be [the child's] biological father,” but denied R.M. parental rights after concluding that R.M. both “failed to carry his burden of proving that he is able to take responsibility for [the child] within a time reasonably calculated to meet this child's needs” and failed to establish that “a declaration of his parental rights will be in [the child's] best interest.” The court granted the guardians' petition to terminate his parental rights pursuant to 18–A M.R.S. § 9–204 for the same reasons. R.M. appeals.

II. DISCUSSION

A. Paternity

[¶ 9] We have consistently recognized that a biological parent has a fundamental liberty interest in parenting his child absent a showing of unfitness. E.g., Guardianship of Jewel M., 2010 ME 80, ¶ 6, 2 A.3d 301. Indeed, the parties in this matter have focused on the court's fitness determination and whether the process afforded R.M. adequately protected that fundamental right to parent.

[¶ 10] Nevertheless, neither R.M.'s fitness as a parent nor the process due to him as a parent is implicated if he is not, in fact, the child's biological father. The paternity provision of the adoption statute, 18–A M.R.S. § 9–201, provides that the court may grant parental rights only to a putative father who is, in fact, the biological father of a child whose mother has placed him or her for adoption.⁵ 18–A M.R.S. § 9–201(i). Likewise, the court need not even consider whether to terminate R.M.'s rights before proceeding with the adoption if he is not the father of the child. See 18–A M.R.S. §§ 9–204, 9–302(b) (2011). The importance of R.M.'s paternity to the disposition of this case therefore cannot be overstated.

[¶ 11] Unfortunately for all of the parties involved, however, the record introduces substantial doubt as to whether R.M. is, in fact, the child's biological father.⁶ These proceedings began in November of 2009. The mother originally attested four times under oath that she did not know the identity of the child's father. Later, she based her conclusion that R.M. is the father solely on the child's appearance. The mother also concedes that it is possible that some other man is the father. In January of 2010, the child's mother first disclosed to both R.M. and the Probate Court that R.M. was the child's father. Almost immediately, R.M. acknowledged his paternity.⁷ At that point, the Probate Court immediately should have ordered R.M. to participate in paternity testing.⁸ See 18–A M.R.S. § 1–302(b) (2011) ( “The [Probate] Court has full power to ... take all other action necessary and proper to administer justice in the matters which come before it.”); Estate of Kingsbury, 2008 ME 79, ¶ 9, 946 A.2d 389 (holding that 18–A M.R.S. § 1–302(b) provides the court with authority to order DNA testing when there exists “good cause or sufficient reason”).

[¶ 12] In its very first incarnation, the paternity provision of the adoption statute was enacted in 1855. R.S. ch. 189, § 5 (1855). More than a century and a half has passed, however, and DNA tests are now accessible, easily administered, affordable, and routinely used to determine actual parentage. A child's physical appearance is no longer determinative or even relevant. When the paternity of a child is in question, science, rather than anecdote, should prevail, and the parties should be required to submit to DNA testing. See State v. Paradis, 2010 ME 141, ¶ 6, 10 A.3d 695 (referencing the immutability of biological parenthood).

[¶ 13] Given the uncertainty created by the record in this case, we conclude that, without a paternity test, the court lacked competent evidence to support its finding that R.M. is the child's biological father. We vacate the court's determination that R.M. is the child's biological father and remand the matter for the court to order DNA testing at the earliest possible time.

B. Parental Rights

[¶ 14] Although we are mindful of the very real risk that this litigation may become moot after paternity testing, we also take this opportunity to clarify 18–A M.R.S. § 9–201 to provide the court and the parties with the guidance necessary to evaluate such petitions in the future.

Section 9–201 provides, in pertinent part:

(a) When the biological mother of a child born out of wedlock wishes to consent to the adoption of the child or to execute a surrender and release for the purpose of adoption of the child and the putative father has not consented to the adoption of the child or joined in a surrender and release for the purpose of adoption of the child or waived his right to notice, the biological mother must file an affidavit of paternity with the judge of probate so that the judge may determine how to give notice of the proceedings to the putative father of the child.

....

(d) If, after notice, the putative father of the child wishes to establish parental rights to the child, he must, within 20 days after notice has been given or within a longer period of time as ordered by the judge,...